MACDOUGALL v. MACDOUGALL. (11/09/59)

November 9, 1959

MACDOUGALL, APPELLANT,v.MACDOUGALL.

Appeal, No. 99, March T., 1959, from order of Court of Common Pleas of Allegheny County, April T., 1958, No. 1414, in equity, in case of Elizabeth L. MacDougall, as mother and next friend of Loraine Laughlin MacDougall et al. v. Allan MacDougall, Jr. Order reversed. Equity. Defendant's preliminary objections to complaint sustained and order entered, opinion by O'BRIEN, J. Plaintiff appealed.

COUNSEL

Carl E. Glock, with him David McNeil Olds, and Reed, Smith, Shaw & McClay, for appellant.

James M. Arensberg, with him Patterson, Crawford, Arensberg & Dunn, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 341]

OPINION BY MR. JUSTICE MCBRIDE

This is an appeal from an order of the Court of Common Pleas of Allegheny County sustaining preliminary objections to plaintiff's complaint in equity.

The plaintiff, as mother and next friend of three minor children, sought a decree for periodic support payments by a nonresident father to be enforced against a trust fund established as collateral security for such support within the jurisdiction of the court. The mother and father are divorced, the father being now a resident of California. Since the divorce, both plaintiff and defendant have remarried and the children live with their mother in Westmoreland County, Pennsylvania. Before their divorce, they entered into a voluntary separation agreement which provided for the support and custody of the children. It is of no

[ 397 Pa. Page 342]

consequence that it has terminated or that it authorized suit thereafter in "any proper Court". The only question presented is whether plaintiff has proceeded in the proper court upon which decision must be made under principles of law not on voluntary consent.*fn1

The court below held that the plaintiff had no cause of action under the Act of May 23, 1907, P.L. 227, as amended, 48 P.S. § 131,*fn2 because the complaint did not allege a necessary element of the court's jurisdiction, i.e., separation without reasonable cause. The court also held that in view of the facts stated in the complaint it would not be possible for plaintiff to amend so as to supply the missing defect. The plaintiff, on the other hand, claims that the Act of 1907, supra, gives her children the right to sue their father for support in the Court of Common Pleas of Allegheny County without alleging separation without reasonable cause, and that it is enough that he has failed to provide adequate support for them. Defendant does not question the basic duty of a father to support his children; rather, he contends that that duty cannot, in

[ 397 Pa. Page 343]

this instance, be determined by the Court of Common Pleas of Allegheny County under this particular statute. The 1955 amendment to this Act covered support of children specifically for the first time. However, prior to that time, although the Act mentioned only support of a wife, this court had interpreted it so as to extend its ...

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